Tuesday, 3 January 2017

T 488/13 - A printing error

This printing error increases value

Due to a printing error, a value in the claims differed between the printed patent and the Druckexamplar. During oral proceedings, the proprietor corrected a value in a request to the value in the Druckexamplar. Earlier, the proprietor had also filed requests in which unclear claims were cancelled. The opponents objected to both amendments on the basis of them being late filed, but the board rejects the objections.

Reasons for the Decision

1. The appeal is admissible.

2. Admissibility of requests

2.1 Respondent III requested that all claim requests submitted by the Appellant on 9 January 2014 should not be admitted into the proceedings as they were late filed, the present main request and auxiliary requests 2 and 3 corresponding to auxiliary requests 1, 5 and 7, respectively, filed on 9 January 2014. Respondent III also submitted that auxiliary request 1 filed during the oral proceedings before the Board should not be admitted on the basis that it was filed at an even later stage of the proceedings.

2.2 The Board notes that the claim requests filed with letter of 9 January 2014 were in direct response to objections raised by the Respondents in their replies to the Appellant's statement setting out the grounds of appeal, more particularly to objections under Article 84 EPC to certain claims filed with said statement. The amendments essentially involved deletion of those claims objected to for lack of clarity from these claim requests, such that the Board holds that the amendments are appropriate. Furthermore, these claim requests were all filed over two years prior to the oral proceedings before the Board, leaving the other parties sufficient time to consider them. Auxiliary request 1 was filed during the oral proceedings before the Board in response to Respondent III's objection raised two days before said proceedings to the lack of support in the application documents as filed for the value of 1.8% by weight of ammonia in dependent claim 3 of auxiliary request 3 filed with letter 9 January 2014. However, said value of 1.8% was present only in the printed version of the granted patent specification, and not in the version accepted by the EPO, the value in the "Druckexemplar" being 1.6%, said finding not being contested by the Respondents. A printing error, which cannot be imputed to the Patentee, should normally be correctable at any time. The proposed amendment effectively corrects such a printing error, so that the proposed amendment is appropriate and necessary. It is also obviously allowable under Articles 123(2) and (3) EPC, see also G 1/10 (OJ EPO 2013, 194, point 13 of the Reasons).

2.3 For these reasons the Board admits the main request and auxiliary requests 1 to 3 into the proceedings.

This decision T 0488/13 (pdf) has European Case Law Identifier: ECLI:EP:BA:2016:T048813.20160609. The file wrapper can be found here. Photo is the Inverted Jenny taken from "7 Most Expensive Stamps".